143 F.2d 155 | D.C. Cir. | 1944
Appellant brought this suit
Appellee Carney moved to dismiss •the complaint on the grounds, among others, that he was not a resident of the District of Columbia or served with process there, and that he and the Commissioner of Patents were not “adverse parties residing in a plurality of districts” within the meaning of 35 U.S.C. § 72a.
It does not follow that the court was right in dismissing the complaint as to the Commissioner. We think the complaint alleges in substance that the Harrisburg Company abandoned trade-mark 174,444 in 1934 and was dissolved in 1935, and that the purported assignment in its name was made at a later time when it did not own the mark and was not in existence. These allegations have not been denied. If they are true, Carney does not own the trademark and is not an indispensable party. The suit should therefore proceed against the Commissioner of Patents alone. The Commissioner has not yet pleaded to the complaint. Our ruling is without prejudice to his right to do so and to contest the facts which it asserts.
Affirmed in part, and reversed in part.
R.S. § 4915, 35 U.S.C.A. § 63.
Italics supplied.
35 U.S.C.A. § 72a.
Coe v. Hobart Mfg. Co., 70 App.D.C. 2, 102 F.2d 270.